A few days later – February 14, 2018 – Smucker’s Big Heart pet foods issued a “withdrawal” for certain varieties of canned pet food. It’s significant to note, Smucker’s issued a withdrawal, not a recall. Withdrawals can be pretty quiet, minimal notice to pet owners. But a recall requires the manufacturer to issue a nationwide press release.

As Smucker’s Big Heart tried to alter their path to removing millions of cans of pet food from store shelves, FDA issued an “Alert” to pet owners warning the Smucker’s pet food could be contaminated with pentobarbital.

It ended up, that more than 107 million cans of pet food were recalled because pentobarbital in pet food is a certain risk to pets.

And now…Smucker’s is trying to alter the path they take again.

A consumer class action lawsuit was filed against Smucker’s Big Heart Brands pet foods on February 9, 2018 stating: “Defendant wrongfully advertised and sold the Contaminated Dog Foods without any label or warning indicating to consumers that these products contained any level of Pentobarbital or that Defendant utilized animals that have been euthanized as a protein or meat by-product source.”

Smucker’s Big Heart is asking the court to dismiss the lawsuit – because they believe a recall and a refund is sufficient payback to consumers. Quoting the Smucker’s Big Heart Brands request to dismiss:

Plaintiffs’ claims are moot, because all of the relief they are seeking has been made available through a standing refund offer.

In early 2018, upon learning that some of its pet food had been found to contain a chemical called pentobarbital, Defendant took immediate action to address the problem: working with the FDA to recall affected products, offering full refunds to customers (including Plaintiffs and all members of the putative classes), and even offering to pay veterinary bills for concerned pet owners to confirm their pets’ well-being. Plaintiffs now seek to maintain 47 claims related to this contamination, on behalf of a putative nationwide class and 13 state subclasses. However, all of these claims are moot because Defendant has ceased selling and recalled the products and made a standing offer to fully compensate Plaintiffs for all of their pleaded damages. As Plaintiffs have no claims that qualify for punitive damages, there is no additional remedy available to them at law.

While Plaintiffs’ Amended Consolidated Complaint (“Complaint”) consists primarily of provocative material about the risks and harms of pentobarbital to animals, and mud-slinging about Defendant, the gravamen of the Complaint is rooted in alleged false advertising. In fact, not one of Plaintiffs’ claims is grounded in any actual or potential harm to pets.

In February of this year, Defendant learned of a report indicating that its Gravy Train brand of dog foods had tested positive for the drug pentobarbital. Defendant, and its parent company, Smucker, immediately launched an investigation to verify the report, determine where and how the drug had infiltrated its supply chain, and uncover which products might have been affected. It also began cooperating with the FDA to investigate possible sources and effects of the drug, and consulted veterinarians and animal nutrition specialists, who confirmed that the pentobarbital would not pose any risk to pets.

Once Defendant confirmed the presence of pentobarbital in certain of its products, it acted immediately. A press release was issued to inform the public of all potentially affected products and, despite the minimal risk to animals, Defendant took steps to mitigate concerns by withdrawing potentially affected shipments, and inviting consumers to call with questions.

Plaintiffs’ Fraud Claims Do Not Show Knowledge or Intent to Deceive. Defendant Did Not Make Any Express Warranties To sufficiently plead breach of express warranty, Plaintiffs must ‘identify a specific and unequivocal written statement’ about the product that constitutes an ‘explicit guarantee (FDA website stating pet food is safe to consume)

In other words, Smucker’s Big Heart Brands firmly believes they did enough…a recall and a refund was sufficient payback to the pet owners that trusted their pet foods.

To read the full Smucker’s request for dismissal of the lawsuit, Click Here.

The legal process allows for Smucker’s to request this lawsuit to be dismissed. But, the legal process also allows for the attorneys representing pet owners to ask the court to continue the lawsuit. Here are excerpts from the other side:

This case is about Big Heart improperly selling adulterated dog food (collectively “Contaminated Dog Foods”)3 that contained pentobarbital, a Class II controlled substance that should not be present in pet food at any level. Nowhere in Defendant’s Motion does Defendant deny that it improperly sold adulterated dog food, nor does Defendant deny that selling adulterated dog food is prohibited. Instead, Defendant admits that it sold products marketed as dog food that were wholly inappropriate for consumption by dogs due to their contamination with pentobarbital. Defendant attempts to minimize this gross wrongdoing by focusing on the action it took after a third-party reported that certain of the Contaminated Dog Foods contained pentobarbital and this action had been filed in this Court. But, as established below, these late actions taken by Defendant do not eliminate its liability for selling the Contaminated Dog Foods and misleading consumers as to the nature and quality of the Contaminated Dog Foods.

In the end, Defendant was forced to recall 90 million cans of pet food spanning multiple brands, and testing by the FDA confirmed the presence of pentobarbital in the tallow supply included in the Contaminated Dog Foods, with significant levels of over 800 parts per billion (“ppb”). Defendant claims that the source of the contaminated tallow is one supplier—JBS USA Holdings, Inc. (a subsidiary of JBS S.A.) and its rendering facility MOPAC located in eastern Pennsylvania (collectively, “JBS”)—who knowingly works with recycled meat by-product, including animal byproducts not suitable for human consumption, and accepts euthanized horses.

Defendant made numerous claims on its Contaminated Dog Foods’ labels and through advertising related to the safety and nutritional value of its pet foods, including the phrases: “100 percent complete and balanced nutrition”; “providing safe, healthy, and high-quality food” with “the purest ingredients”; and “nourishing meal.” AC ¶¶51-53; 113. It further promised to its consumers that all its products met U.S. Department of Agriculture (“USDA”), American Association of Feed Control Officials (“AAFCO”), and Food and Drug Administration (“FDA”) standards.

Defendant touted its quality assurances and supplier standards to further support its claims of healthy, safe, pure, and quality dog food. Specifically, Defendant maintains that it keeps rigorous quality and supplier standards from “start to finish” and performs three-tier auditing that includes third party auditors, to ensure pure ingredients and fair labor are used in its products, including the Contaminated Dog Foods.

To read the full response to Smucker’s request for dismissal, Click Here.

Question to pet owners:

Do you believe a recall and a refund is sufficient penalty for Smucker’s Big Heart?

Become a member of our pet food consumer Association. Association for Truth in Pet Food is a a stakeholder organization representing the voice of pet food consumers at AAFCO and with FDA. Your membership helps representatives attend meetings and voice consumer concerns with regulatory authorities. Click Here to learn more.

Comments 8

1) Smuckers did absolutely NOTHING volunatrily and of their own accord to identify the pentobarbital contamination, notify consumers of the risk, recall the contaminated food, offer a refund to the consumers and/or offer to reimburse any expenses for resultant veterinary care. If not notified by the FDA, Smuckers would have ignored the contamination and continued to produce, market, distribute and sell the contaminated food without any self-imposed corrective action.

2) The source of the contamination (known by Smuckers prior to and during the recall episode) was euthanized horse meat that was being included in the food product without AAFCO label identification and in direct defiance of Alabama regulatory compliance (i.e. they were intentionally contaminating the food with euthanized horse meat, intentionally violating the regulatory requirements pertaining to contamination with poisonous substances, and intentionally not disclosing this illegal practice of adding known contamination / poison to their dog food product to consumers, regulatory agencies and the general public).

3) Smuckers has not gone out of its way to satisfy public concern and consumer demand for correcting this contamination. All of their responses involved using defense attorneys to minimize their financial liabilities. No concern above and beyond the minimal required actions have ever been initiated by Smuckers.

What exactly is the rational basis for requesting leniency by the court?

Absolutely not! As Peg said, this attitude is rich coming from a line calling itself “Big Heart.”

Smucker’s – and other Big Pet Foods – serve up garbage to pets 24/7, then feel *wronged* when sued for ALSO dishing out significant dollups of barbiturates. Petsumers are the ones being wronged here, every step of the way.

With all the current information available about the possibility of contamination of animal feed at this point I feel anyone who chooses to feed commercial animal feed to their animals is neglectful. But if you are reading this, I am preaching to a choir. I will never feed it again but then I have been feeding home made for 23 years. Here’s the problem, those of us “in the know” are a small per-portion of world wide animal owners. Just like with information on over vaccination & toxic flea products the big question is: HOW DO WE GET THIS INFORMATION TO THOSE WHO DO NOT RECEIVE INFORMATION FROM IT’S SCIENTIFIC AND FACTUAL SOURCES LIKE WE DO???????? There is just so much mis-information served as rancid steaming bowls of poo to the gullible & blind pet owning public. How do we get them this information in a way they will understand and believe? They are pretty brainwashed right now.

Agree except for one thing…..there are thousands of people that cannot afford to feed homemade diets, raw or otherwise, or the high dollar quality commercial foods available. Please, don’t start with the mantra, “if you can’t afford to xyz then you shouldn’t have an animal”. That’s nonsense for more than one reason. First, you have no idea what financial situation a person was in when acquiring an animal(s), nor what has transpired since, second, if everyone that couldn’t afford what some people believe are essentials did not have any animals, who would be taking care of these thousands of pets? The shelters are already full, rescues are full, fosters are full, thousands are euthanized daily across the country. And no, raw diets are not cheaper to feed when including the proper organ meats and making it a balanced diet. I wish it were and for some people that have access to certain meats it can be, but that’s the exception not the rule. Where I used to live I had access to a lot of meats and organs at a really cheap price. Not so now, in fact, can’t even find organ meats as a rule, let alone affordably. Commercial food is lacking to be sure, without question. But for many that’s the option they have. Manufacturers should be held to using the proper meat and ingredient sources and punished to the max when they don’t. It won’t stop until the cost hurts them more than their profits.

I’ve seen this argument before, and believe in balancing the discussion for newer readers. Except for physically challenged owners, there is only one excuse for taking shortcuts, and that’s choosing convenience over common sense.

1) Handling car ownership, means gas, maintenance & fee considerations, so rational choices are based on reality (not emotion).
2) Who is responsible for “backyard breeder” mistakes & greed contributing to shelter issues, instead of communities demanding enforcement and fines,otherwise bad behavior excels!
3) Choosing a shelter dog comes from the heart, not as a civic duty.
4) Raw diets (scrap meat) is cost effective from old fashioned and local ranch butchers. Some cities (mine) have consortiums (group purchasing) using volunteers who manage distribution.
5) Rotational feeding in an alternative.
6) One raw/ healthy meal a week/month is better than a non-stop diet of Ol’Roy PF.
7) Wonderful people caring for foster children are not expected to “dumb down” meal plans because of quantity.
8) Cost of living (here) is very high, yet ground beef is $3.50 a pound; a better than average kibble is $2.35lb a pound.
9) Using a can of Dinty Moore’s Beef Stew can be a better choice than some canned PF. A bag of Pet Kelp (vitamins/minerals) is very affordable.
10) Being on a fixed income, not requiring a steady diet of meat, means my portion of the budget is donated to my furry companions.
10) Additional protein rich foods can be included, like egg, canned fish or chicken, and (FF) cottage cheese.
11) People sinking under the reasonable affordability of pets, can be approaching the threshold of animal hoarding.
12) Per individual lifestyles, consider pet size when adopting.
13) Every creature is due quality of life, which shouldn’t be compromised by using “Dollar Store” and “Corner Gas Station” grade PF!
13) There’s more to owning a pet than “feeding” including safety, preventative & critical medical care, comfort, grooming, exercise and personal attention!

Very well put! And so true, apparently nutrition for your dogs have always been important and you did a lot of research on your own because you wanted your dog to be as healthy as possible. And that’s what I did also, I took personal responsibility for my German Shepherd’s health. Common sense dictated to me commercial dog foods are not what Mother Nature had in mind for our dogs diet. No more than feeding our children a cereal that was suppose to have 100% of their daily requirements of vitamins and minerals for the rest of their lives.
Nowadays it’s easy to research than what it use to be, but there are so many self appointed experts you have to search with diligence.

Glad they had to recall 90 million cans of dogfood. I’m guessing that the most effective indictment is that responsible pet owners, once knowing they are grinding up euthanized horses to make dog food, will boycott ANY product from this company. That is the only way to get even for this irresponsibility, in the pocketbook. I appreciate the information Susan Thixton brings to us.